Just when you thought you had heard it all...First of all, while it is a fact that Congress can, indeed, raise objections to the state-certified electoral ballots that were marked on Dec. 14 during the Jan. 6 joint session of Congress as the votes will be officially tabulated and certified with Vice President Mike Pence presiding, and while it is also true that, during this joint session of Congress, a House member can raise an objection to the vote count in writing with the signature of at least one U.S. senator, President Donald Trump's lawyer Jenna Ellis is wrong on one procedure.
Now, on Jan 6, 2021, if objections are properly raised then the two Houses will retire to their respective chambers and a two-hour debate will then ensue. According to Ellis, the Senate and House will vote by state delegation with one vote from each state which is completely inaccurate. Ellis is in error because for the purposes of determining whether to uphold objections to the electoral vote count, the House votes as a body with individual members casting a vote.
There have been instances since the passage of the 1887 Electoral Vote Count Act where objection procedures have been invoked – on Jan. 6, 2001, the objection failed to reach the debate point as not one member of the House, who raised an objection, could get a single U.S. senator to sign on to the objection – and in this case, the objections were rejected and the electoral votes were counted as cast. The Democratic Party still has the majority in the House, and the objection vote would have to pass both houses. President-elect Joe Biden received 306 electoral votes, which is well above the 270 majority threshold needed to win the presidency, and Trump received 232 electoral votes, which is well under the majority threshold.
Had Biden and Trump tied with 269 electoral votes each, or if the House and Senate vote to exclude electoral votes in those battleground states, should a senator sign on to a House member's objection on Jan. 6, then the 12th Amendment to the U.S. Constitution comes into play with the House of Representatives deciding the outcome of the presidential election. The only time the House members would vote as a state delegation – meaning each state would have one vote each – would be if the 12th Amendment was invoked as was the case in 1824. In the 1824 race for the presidency, John Q. Adams, Andrew Jackson, Henry Clay, and William Crawford ran for president, and none of these candidates won a majority in the Electoral College so the election was decided in the House. Crawford was not in the top three, so he was disqualified from the race, and thanks to the political maneuvering by Congressman Clay, Adams won the presidency after which President Adams appointed Clay to be his Secretary of State to which Jackson denounced as a "corrupt bargain!"
In the final analysis, what has transpired over the last several weeks since the November quadrennial election has been not only unprecedented with outlandish and baseless claims about widespread electoral fraud, but the last several weeks have shown the desperation of the Trump camp regarding inaccuracies about any congressional challenges to the electoral votes. Ellis is a law school graduate, and I do not doubt her devotion to the practice of law and accomplishments in that field, yet the propagating of false information about congressional vote count objection rules only provides false hope to many, yet certainly par for the course for Trump world.
Brent Been is a Tahlequah educator with an emphasis on civics and history.